Regulatory Update Jason Bostic April 10 2007 West

Regulatory Update Jason Bostic April 10, 2007 West Virginia Mine Drainage Task Force

Introduction n Legislative Report n Regulatory Issues n Section 404 Issues n Outlook

2007 Legislative Session n Year n of Stream Lists Defense on Safety Issues

2007 Legislative Session n Tier 2. 5 Streams -Anti-Deg Program n Trout Streams -Water Quality Standards Program

2007 Legislative Session n Legislative Rulemaking Review n Anti-deg Rule and WQS Rule become legislation

2007 Legislative Session n Legislative Battle -Farmers, Forestry, Oil & Gas, Manufacturers, Coal vs. WV DEP, Enviros -Tier 2. 5 list amended in Senate Judiciary Committee to remove all but 38 streams from the list -Senate Judiciary Committee poised to delete proposed expansion of the trout stream list

2007 Legislative Session n Meanwhile in the House of Delegates… -House Judiciary Committee considers all of WV DEP’s rules at once -prematurely “bundled” the rules into one single piece of legislation -Entire rule package passed without amendment to House floor

2007 Legislative Session n Poised for a floor fight -Assembled enough votes on the floor to amend rules to delete most of the Tier 2. 5 streams and to remove the expansion of the trout stream list -House leadership refused to add the bill to the special calendar so that it could proceed to amendment stage

2007 Legislative Session n Meanwhile in the Senate… -All work on WV DEP Rules halts in anticipation of receiving House version of legislation -Normally, Senate would accept House version and make amendments

2007 Legislative Session n House refuses to place WV DEP rules bill on special calendar n Senate has stopped working on the rules n. DEADLOCK

2007 Legislative Session n n n House Judiciary Committee Chair tries to broker compromise No fewer than six compromises offered by the “anti-deg coalition” Each one would address trout streams and other rule issues as well as tier 2. 5 streams WV DEP and administration consistently rejected compromise offers WV DEP wants 156 tier 2. 5 streams Anti-deg coalition cannot accept all 156 streams

2007 Legislative Session n What Happened? -Legislature adjourned without completing action on any of the WV DEP rules -Mining & Reclamation -Explosives & Blasting n What Happens Now? -Still hopeful for a compromise -All roads lead to the lawyers…

2007 Legislative Session n Why do we care if the rules failed to pass? -ALUMINUM n But… -EPA approved the change as though it was permanent

2007 Legislative Session No firewall between agencies on a rulemaking binge and the regulated community: Industry & the Public

2007 Legislative Session n Other Bills -Greenhouse Gas Reporting -Passed during the last hours of the session -Coal Association opposed the bill -Coal mining operations exempt

2007 Legislative Session n n Coal Slurry Study Resolution -Reaction to hysteria campaign conducted by the extremists -Requires WV DEP to conduct a study of groundwater movement of injected slurry into domestic wells -Department of health to analyze chemical constituents of slurry All of this has been done before, but not enough for the Other Side

2007 Legislative Session n Bills that failed to pass -UMWA on surface mine board -Prohibition on use of belt air -Prohibition on longwall mining -Requirement that WV DEP perform complete title search on all lands associated with mining permit -Various safety related bills

Regulatory Issues Cascade of Legal Actions

Regulatory Issues n Notices of Intent to Sue Selenium -Clean Water Act -SMCRA -Material Damage -Individual Permit Holders

Regulatory Issues n n Notice of Intent to Sue Motion to Reopen Bonding Case -Alleges the Special Reclamation should hold NPDES permits at bond forfeiture sites -Coal mining effluent limits -Alleges the SRF is Insolvent -Legislature failed to act on recommendation to establish a trust fund -But SRF has enough $$$ to last until 2016

Regulatory Issues n Final OSM Tennessee Bonding Rule -No Resolution of the AMD Policy n EPA Re-evaluation of Coal Mining Effluents Limits n Re-submission of Material Damage Definition

Regulatory Issues n New Programmatic Section 404 General Permits -Nationwide Permit 21 Surface Coal Mining Operations -Nationwide Permit 49 Remining Operations -Nationwide Permit 50 Underground Mining Operations

Section 404 Issues n Chambers Case -Challenge of Corps’ Issuance of IPs to Four Massey Energy Subsidiaries -Coal Association Intervenes to Protect Programmatic Issues n Extremists Have Found a New Whipping Boy: U. S. Army Corps of Engineers

Section 404 Issues n Alleged Pre-mining Stream Assessment Inadequate n Alleged Mitigation Unproven and Unable to Offset Stream Losses n Alleged Impacts Significant– EIS Required n Alleged Even if EIS was Conducted, Corps Could not Issue Permits

Section 404 Issues n “Waste Treatment Exclusion” -Stream Length Between Toe of Fill and Sediment Pond -Extremists Argue that Segment is Being Illegally Used for Waste Assimilation -Corps, EPA Have Policy– Length is Part of a Waste Treatment System and Exempt from Section 402 Requirements

Section 404 Issues n n March 23, 2007 Decision Judge Usurped the Corps’ Authority; Inserted His Own Beliefs for the Discretion of the Agency -Corps Failed to Adequately Measure Stream Functions -Mitigation Cannot Offset Losses -Corps NEPA Analysis Should Extend to Uplands Areas

Section 404 Issues n Judge Rescinded the Four Permits n Decision Cuts Deep-On-site Mitigation -Off-site Mitigation n Sets the Bar Too High; Ties the Corps’ Hands n Judge Bought the Plaintiffs’ Line w/ Respect to Stream Functions -Endorsed the Theories of Out-of-State Environmental Philosophers Over Professional Corps’ Staff

Section 404 Issues n Plaintiffs Trying to Add Other Permits to the Case -They Have Always Viewed the Case as a Programmatic One n Subsequent Ruling, Judge Prohibited Further Placement of Material in Already-Started Fills -Cannot Raise the Elevation of the Deck of the Fill Even Though Corps’ Jurisdiction has Terminated

Section 404 Issues n What Happens Now? -Major Slow Down in Corps Permitting (? ) -Trying Our Best to Keep Decision From Becoming Programmatic (not much success) -Awaiting a Ruling on Waste Treatment Exclusion -Richmond, Here We Come!

Something Wicked This Way Comes n FOIAs Filed by Same Groups -Louisville District IPs & NWPs -Pittsburgh District IPs & NWPs -Huntington District NWPs

Section 404 Issues n Rapanos -Hopeful that Corps & EPA Finalize Jurisdictional Guidance Soon -Prospect of Each and Every Section 404 Permit Being Thrown Under the Wheels of the Legal System will Encourage Industry to Seek a Jurisdictional Challenge

Outlook (Hint: Think Legal Bills) n Enough is Enough n WVCA Challenges – – – Selenium Category A AMD Policy WV Stream Condition Index Jurisdictional Waters

Outlook n Refuse to Give Up and Resort Only to the Legal System -Work Through All of This

Outlook n WV DEP Funding Issues -Division of Mining & Reclamation Needs $$$ (well, maybe they need $$$) -Review the OSM Required Staffing Levels -Work on Resolution that Satisfies Everyone

Outlook n Selenium (the scientifically-indefensible standard) -Find a Treatment Solution -Site-Specific Criteria -Change the WQS n All of this Would be Easier if We Weren’t Fighting in Court

Outlook n If Selenium is a Problem in West Virginia, Why is it Not a Problem Elsewhere? n Why is Selenium Only a Problem Related to Coal Mining? n Show Me the Impacts

Outlook n Global Climate Change -Supreme Court has Fallen Victim to Hysteria -Back to EPA -Time for a Response

Outlook n Don’t Give Up n Not Going to be Easy n Going to Cost Money n In the End, We Will Prevail -Appalachian Coal Far Too Important n But Will We Prevail Soon Enough?